The Department of Justice (“DOJ”) has sent a strong message to corporate America by signaling that it intends to use the force of criminal investigations to eliminate certain practices in the private sector. On February 5, 2025, Attorney General Pam Bondi issued a memorandum directing the DOJ to initiate broad investigations of private companies for civil rights violations related to diversity, equity, and inclusion (“DEI”) and diversity, equity, inclusion, and accessibility ("DEIA") practices. The memorandum foreshadows a likely increase in federal enforcement activity and furthers President Trump’s January 21, 2025 Executive Order 14173 (the “Executive Order”) that aims to eliminate all DEI and DEIA policies and programs within both the federal government and the private sector.
The memorandum directs the DOJ Civil Rights Division and Office of Legal Policy to jointly submit a report to the Associate Attorney General, by March 1, 2025, which must include proposals for criminal investigations and for up to nine potential civil compliance investigations of entities that are defined by the Executive Order as publicly traded corporations, large non-profit corporations or associations, foundations with assets of 500 million dollars or more, State and local bar and medical associations, and institutions of higher education with endowments over one billion dollars.
Additionally, the report must contain “recommendations for enforcing federal civil-rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including policies relating to DEI and DEIA,” and identify:
- “Key sectors of concern within the [DOJ’s] jurisdiction”;
- “The most egregious discriminatory DEI and DEIA practitioners in each sector of concern”;
- A plan setting forth “specific steps or measures to deter the use of DEI and DEIA programs or principles that constitute illegal discrimination or preferences”;
- Additional potential litigation activities, regulatory actions, and sub-regulatory guidance; and
- Other strategies to “end illegal DEI and DEIA” and to comply with federal civil-rights laws.
Notably, and as discussed above, the memorandum seeks proposals for criminal investigations into the purportedly unlawful use of DEI and DEIA programs—a measure that was absent in Executive Order—in addition to seeking information about up to nine potential civil compliance investigations of entities that meet the criteria outlined in the Executive Order. Based upon the plain language of the memorandum, the DOJ appears to be preparing to execute quickly with initiating these investigations based on the recommendations of the Civil Rights Division and Office of Legal Policy.
Importantly, the memorandum explicitly states in a footnote, that the DEI and DEIA preferences, mandates, policies, programs, and activities in the private sector and in educational institutions that are being targeted are those that discriminate, exclude, or divide individuals based on race or sex. The memorandum provides that “educational, cultural, or historical observances-such as Black History Month, International Holocaust Remembrance Day, or similar events-that celebrate diversity, recognize historical contributions, and promote awareness without engaging in exclusion or discrimination” are not being targeted. The memorandum also previews further DOJ guidance to the Department of Education as to how educational agencies, colleges, and universities are expected to respond to the Executive Order, noting that the Civil Rights Division will pursue actions against these entities as well.
Private sector organizations and educational institutions should be actively considering their policies in light of these developments and, to the extent that their policies do not violate the Executive Order, documenting the reasons why. We expect more information to be released about the DOJ’s efforts on this front in the coming month, along with the report itself, and will continue to monitor this dynamic landscape.
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